SALMA (Petitioner) filed a case against ASAD (Respondent) under Sec 488 of CRPC,0n 24-10-2012 claiming maintenance. She totally concealed the occurrence of divorce on her about 3 yrs back. ASAD produced documentary evidence for divorce ( Qazi’s decree), but Ex. Magisterate ordered interim of 1500/- per month on 12/4/2012. ASAD, the respondent self-pleads. Cross exam of the SALMA on 4/5/2012 was productive and suggestive of divorce occurred.
ASAD was provided the Certified copy of the Interim order on 4/5/2012. He did not appeal against interim order in the higher court, but filed a review petition to the same court and same Judge on 23/6/2012, raising some genuine issues to show that the Interim order was erroneously based. A Copy of the review petition was provided by the Judge to the Petitioner’s counsel on the same day for filing of reply. The Petitioner’s counsel did not object. SALMA,the Petitioner could not produce any witness in support of her claims and allegations till her side of witness was closed on 4/8/2012. Thereafter the Petitioner and her counsel started absenting from hearings and ASAD, the respondent, thus, did not pay any maintenance.
The old Judge got transferred in August,2012 and the new Judge dismissed the case on 19/9/2012. But the case got restored in Nov., 2012 to which ASAD did not object and the Petitioner brought a new counsel to plead. By the time, ASAD (respondent) claimed that SALMA was a self –affirming divorcee because:-
1. She has registered herself with a Marriage Bureau on 24/01/2012 for her IInd marriage, for which a certificate from the said Marriage Bureau was filed in the court.
2. She has applied for a Passport in the capacity of a Divorcee.(Passport Officer refused to disclose the same under RTI)
On 21/12/2012, SALMA’s new counsel:-
a) Filed a reply for ASAD’s review petition (dt:23-6-2012), claiming that it was not maintainable as it was a criminal case, in which there is no provision for review.
b) Filed an application for execution of interim order.
BUT did not rebut the certificate of registration of SALMA with the Marriage Bureau for her IInd marriage.
In the next hearing ASAD, the respondent is producing the witnesses in his support.
Now following clarifications/ advice is solicited from legal experts:
A) Was the review petition against Interim order not maintainable in this trial court or that applies to the final judgement / order?
B) If it was not maintainable, why did the Judge who issued the interim order admit it and why did not the petitioner’s counsel object to its filing and thereafter for 06 months?
C) When SALMA could not produce any evidence in her favour, why the case was not dismissed?
D) How to proceed further at this stage? Please advise.
With regards and thanks in anticipation
